Opinion
H046652
09-18-2019
THE PEOPLE, Plaintiff and Respondent, v. OSCAR ANTONIO AYALA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1364983)
Defendant Oscar Antonio Ayala was convicted of first degree murder after a jury trial. On appeal, this court reversed the first degree murder conviction due to insufficient evidence and remanded the case with directions for Ayala's conviction to be reduced to second degree murder and resentenced accordingly. (People v. Ayala (Oct. 10, 2018, H044534) [nonpub. opn.].)
Ayala moved to augment the record in this case with a copy of the opinion filed in case No. H044534. We deemed the motion to augment a request for judicial notice of the appeal in case No. H044534 and granted the request.
On remand, Ayala asked the trial court to convert his restitution fine of $10,000 into days of imprisonment pursuant to Penal Code section 1205, subdivision (a), to run concurrently with his sentence on the murder count. The trial court denied the request but in light of People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) ordered execution of the restitution fine stayed "unless and until" some time at which it is demonstrated that Ayala has a present ability to pay the restitution fine. The trial court otherwise ordered all previously-imposed fines and fees to remain imposed, including $5,000 in direct victim restitution. It sentenced Ayala to a prison term of 15 years to life for the second degree murder conviction.
On appeal, Ayala's appointed counsel filed an opening brief in which no issues are raised and asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436. We notified Ayala of his right to submit written argument on his own behalf. He has submitted a letter brief arguing that the trial court should have granted his request to convert his fines—both the $10,000 restitution fine and $5,000 victim restitution—to days of imprisonment as requested at the resentencing hearing.
Pursuant to Wende, we have reviewed the entire record and have concluded there are no arguable issues on appeal. We will provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (People v. Kelly (2006) 40 Cal.4th 106, 110.) We will also explain why we reject the points raised in Ayala's letter brief. (Id. at p. 113.)
I. FACTUAL AND PROCEDURAL BACKGROUND
A jury convicted Ayala of the first degree murder of Reina Figueroa. The facts underlying the murder conviction are set forth in this court's prior opinion. (People v. Ayala (Oct. 10, 2018, H044534) [nonpub. opn.].) The majority in that opinion found the evidence insufficient to support the conviction of first degree murder; the court therefore reversed the judgment and remanded the matter to the trial court to reduce Ayala's sentence to second degree murder and to resentence him accordingly.
Ayala appeared for resentencing on remand, represented by counsel. He submitted a written motion—prepared at the time without assistance of counsel—seeking to convert the $10,000 restitution fine imposed at his prior sentencing into days of imprisonment, pursuant to Penal Code section 1205, subdivision (a). In the motion, Ayala stated that he is indigent and unable to pay the outstanding fines and thus requests "a concurrent sentence for the above stated amount of fines at the rate of thirty dollars ($30) per day . . . ." His counsel clarified that Ayala wished to convert the restitution fine to concurrent prison time because the outstanding fines made him ineligible to participate in certain beneficial classes while incarcerated. He also noted that Ayala was not working while in custody.
The prosecutor disputed Ayala's representation about indigence. He pointed out that Ayala had not raised inability to pay at the original sentencing, had a fulltime job at the time of his arrest, and had "come up with funds" for such things as hiring private counsel for posttrial motions and investigations. The prosecutor also doubted Ayala's representation that he was unable to participate in classes due to the restitution order. He declined to request an ability-to-pay hearing under Dueñas, citing the resources that would be required to prove Ayala's ability to pay.
The trial court observed the "interesting timing" of Ayala's request given recent changes in the law under Dueñas, which placed the burden to show an ability to pay on the People. The trial court decided that it had "probably three choices . . . at a time when the law's somewhat in flux." These were: (1) to reduce the restitution fine to the mandatory minimum, (2) to retain the $10,000 fine, or (3) to consider Ayala's request under Penal Code section 1205 to run the fines concurrent to his sentence. The court noted as to the first two options that Ayala raised no objection at the initial sentencing to imposition of the $10,000 restitution fine, though the fine would be stayed under Dueñas absent a showing of an ability to pay. To run the fines concurrent, the court noted it would have "to go back and look" at whether Penal Code section 1205 applies to all fines, including restitution. Defense counsel responded that the statute "seem[s] to be without any limitations" and refers to a "judgment."
The Dueñas decision was filed about one week before Ayala's resentencing hearing in this case. In Dueñas, Division 7 of the Second Appellate District held that due process requires the trial court to ascertain a defendant's ability to pay before imposing statutorily-mandated court operations and criminal conviction assessments. (Dueñas, supra, 30 Cal.App.5th at p. 1168.) The court also held that serious constitutional questions posed by the statutory mandate to impose a minimum restitution fine without considering a defendant's ability to pay requires the trial court to stay execution of the restitution fine "until and unless the People demonstrate that the defendant has the ability to pay the fine." (Id. at p. 1172.)
The trial court declined to reduce the fine to the mandatory minimum, citing Ayala's ability to return to work and make a living if ever released as well as the "objective history of the case that he was working prior to, that he owned a home, that he has retained private counsel, filed motions under that retention of the counsel, all of that is somewhat objective evidence that he does in fact have some ability to pay." The court acknowledged, however, that because it had not held an "actual hearing" on ability to pay, it would stay the $10,000 restitution fine "consistent with the case law as it currently stands." The court ordered all previously imposed fines and fees to remain imposed, including $5,000 direct restitution to the victim, and sentenced Ayala to a prison term of 15 years to life. It calculated 1,959 days of actual credit for time already served.
Defense counsel objected to the "conditional aspect of the stay of the fine." Ayala filed a timely notice of appeal from the judgment.
II. DISCUSSION
Ayala's letter brief asks this court to correct what he believes was the trial court's error in rejecting his motion to convert his fines into days of imprisonment to run concurrent with his confinement for the murder conviction. Ayala lists the $10,000 restitution fund fine and the $5,000 direct victim restitution in his request pursuant to Penal Code section 1205, subdivision (a). Ayala contends that he is an indigent state prisoner and is unable to pay the outstanding fines, plus interest and penalties. He cites Dueñas and principles of due process and fairness as requiring a hearing to assess his ability to pay the fines, and additionally cites cases for the proposition that the court at sentencing must follow the restrictions and procedures in the statute authorizing the fine. In sum, he argues there is no "solid evidence" to support an implied finding that he can pay the $10,000 restitution fine and $5,000 victim restitution fine, and that the realities of prison compensation dictate against considering prison wages. He attaches several documents from the Department of Corrections and Rehabilitation to support his assertion that he is unable to pay the fines.
We understand Ayala's contention that he is unable to pay the $10,000 restitution fine and $5,000 direct victim restitution. But his request to have those amounts converted to days of imprisonment pursuant to Penal Code section 1205 is not supported in law. Simply put, restitution fines and restitution orders are excluded from the statute, which expressly states that it "shall not apply to restitution fines and restitution orders." (Pen. Code, § 1205, subd. (f).) Because Penal Code section 1205, subdivision (a) does not apply to restitution fines and restitution orders (Pen. Code, § 1205, subd. (f)), there is no arguable issue related to Ayala's request to convert the fines to days of imprisonment.
Ayala misconstrues Penal Code section 1205, subdivision (a) as offering prospective relief in the form of concurrent days of imprisonment for inability to pay a fine imposed as punishment. The statute does not provide the desired relief. Instead, it addresses in relevant part nonpayment of a fine and allows the judgment to specify an additional term of imprisonment at "not be more than one day for each one hundred twenty-five dollars ($125) . . . ." (Pen. Code, § 1205, subd. (a) [providing that a "judgment that the defendant pay a fine, . . . may also direct that he or she be imprisoned until the fine is satisfied and may further direct that the imprisonment begin at and continue after the expiration of any imprisonment imposed as a part of the punishment . . . ."] italics added.) It has been interpreted to "mean that the defendant shall be imprisoned until he either pays the fine or completes a sentence dictated by the amount of the fine left unpaid." (People v. Talibdeen (2002) 27 Cal.4th 1151, 1155 [interpreting a statute with language analogous to Pen. Code, § 1205, subd. (a)]; see also People v. McGarry (2002) 96 Cal.App.4th 644, 652 [referring to Pen. Code, § 1205, subd. (a) as providing "postsentence service of time in custody in lieu of fine"].)
Ayala's other references also do not support an arguable issue concerning the restitution order, because the $10,000 restitution fine and $5,000 direct victim restitution are both authorized under our state's restitution scheme.
A mandatory restitution fine of not less than $300 and not more than $10,000 is "set at the discretion of the court and commensurate with the seriousness of the offense." (Pen. Code, § 1202.4, subd. (b)(1).) It is intended as additional punishment for the crime. (Dueñas, supra, 30 Cal.App.5th at p. 1169, citing People v. Hanson (2000) 23 Cal.4th 355, 363.) The authorizing statute limits consideration of a defendant's inability to pay the amount of restitution except when the court considers increasing the amount of the restitution fine in excess of the minimum. (Pen. Code, § 1202.4, subds. (c), (d).) The statute directs the court in that circumstance to consider "any relevant factors, including, but not limited to, the defendant's inability to pay, the seriousness and gravity of the offense and the circumstances of its commission, . . . [and] the extent to which any other person suffered losses as a result of the crime . . . ." (Id., subd. (d).) The trial court need not hold a separate hearing, and it is the defendant's burden under the statute to demonstrate inability to pay a restitution fine in excess of the statutory minimum. (Ibid.)
Since the $10,000 restitution amount imposed in this case was "in excess of the minimum fine" (Pen. Code, § 1202.4, subd. (c)), there was a defined statutory basis to object. (Id., subds. (c), (d).) The fact that the defense apparently did not do so at the initial sentencing hearing would in most circumstances forfeit any arguable claim on appeal based on an inability to pay restitution. Even accepting that an objection based on inability to pay was not forfeited because Ayala was able to raise it at his resentencing hearing, Ayala failed to carry his burden under Penal Code section 1202.4, subdivision (d) to demonstrate his contended inability to pay. What is more, by staying execution of the restitution fine consistent with Dueñas, the trial court preserved the possibility that at some point Ayala's ability to pay the amount of restitution fine imposed will be tested. (See Dueñas, supra, 30 Cal.App.5th at p. 1172.)
Applying the forfeiture doctrine regarding imposition of the $10,000 restitution fine would not be inconsistent with this court's recent decision in People v. Santos (2019) 38 Cal.App.5th 923,931-932, that the defendant in that case did not forfeit his challenge concerning ability to pay, because any objection to the fines and assessments in that case would have been futile (see People v. Castellano (2019) 33 Cal.App.5th 485, 489; People v. Johnson (2019) 35 Cal.App.5th 134, 138), whereas under Penal Code section 1204.4, there was a statutory basis to object.
As stated in People v. Santos, supra, 38 Cal.App.5th at page 934, we believe consistent with Penal Code section 1202.4 that it is the defendant's burden to demonstrate inability to pay, not the prosecution's burden to show the defendant can pay, as the Dueñas decision might be read to suggest.
Nor is there an arguable issue as to the $5,000 direct victim restitution order, which is mandated by statute "in every case in which a victim has suffered economic loss as a result of the defendant's conduct . . . ." (Pen. Code, § 1202.4, subd. (f); see also People v. Evans (2019) ___ Cal.App.5th ___ [2019 Cal.App. Lexis 844 at *6-*8] [holding that a defendant's ability to pay victim restitution in setting victim restitution amount].) Because Ayala was convicted of murder, victim restitution in that case is proper.
III. DISPOSITION
The judgment is affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Elia, J.